ABC Files Suit Against OFCCP Rule

Associated Builders and Contractors (ABC) Nov. 19 filed a request for an injunction in the U.S. District Court for the District of Columbia against an Aug. 27 rule from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) that drastically alters federal contractors’ existing affirmative action and nondiscrimination obligations for individuals with disabilities. The rule is schedule to go into effect March 24, 2014.

ABC filed the lawsuit because OFCCP exceeded its statutory authority, altered longstanding precedent, and imposed wasteful and burdensome data collection and reporting requirements on government contractors without any supporting evidence from the agency that contractors weren’t meeting the previous requirements.

OFCCP’s new rule revises existing procedures under Section 503 of the Rehabilitation Act that require federal contractors and subcontractors to maintain affirmative action and nondiscrimination programs by drastically increasing the paperwork burdens. The rule affects all industries, but is especially burdensome for construction contractors that will be required to maintain written documentation and track whether the percentage of protected employees meets affirmative action requirements for federal projects. Such paperwork and reporting provisions are completely new to the construction industry—a fact that was not taken into account in OFCCP cost estimates.

“ABC and its members support nondiscriminatory practices toward individuals with disabilities on government construction projects and we will remain committed to placing these individuals in good construction jobs,” said ABC Vice President of Federal Affairs Geoff Burr. “However, this rule will do nothing to increase employment opportunities for individuals with disabilities. Instead, the new burdens it imposes mean many construction contractors are likely to stop pursuing government construction projects—particularly small businesses that currently provide services but lack the resources to meet the rule’s new burdensome requirements.”

ABC also pointed out that construction contractors face especially negative impacts under this rule because the industry is heavily comprised of small businesses and has a workforce that OFCCP itself has referred to as ‘fluid and temporary,’ compared to non-construction supply and service contractors.

“Because of this unique nature, the construction industry historically has warranted a unique approach, a fact which OFCCP completely ignored when it imposed these new requirements,” Burr said.